[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 13, 2006
No. 05-14889 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00012-CR-T-27-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 13, 2006)
Before TJOFLAT, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Michael Johnson appeals his 140-year sentence for producing and
distributing child pornography in violation of 18 U.S.C. § 2251(a) and
§ 2252A(a)(1), respectively. He contends that we should vacate his sentence and
remand to the district court for re-sentencing because the sentence: (1) is excessive
and constitutes cruel and unusual punishment under the Eighth Amendment; and
(2) is unreasonable in light of the factors listed in 18 U.S.C § 3553(a). We affirm.
I.
On January 12, 2005, Johnson was indicted for two counts of production of
child pornography in violation of § 2251(a) (Counts 1 and 2), one count of
possession of child pornography in violation of § 2252A(a)(5)(B) (Count 3), and
one count of distribution of child pornography in violation of § 2252A(a)(1)
(Count 4). On April 8, 2005, Johnson pleaded guilty to Counts 1, 2, and 4, and the
district court dismissed Count 3 upon motion of the government.
During the plea hearing, the government presented facts that it represented it
could prove at trial and Johnson agreed to nearly all of those facts. The
government stated that between January 2002 and January 2005, Johnson took
sexually explicit photographs of two minor males, identified as Victim 1 and
Victim 2. The government stated that Johnson produced computer images from
the photographs and sent them to a recipient via America Online.
The pre-sentence investigation report (PSI), prepared by a parole officer,
elaborated on Johnson’s offenses. According to the PSI, investigators determined
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that Johnson had produced at least 150 pornographic images and transmitted an
unknown number of the images through the Internet. Investigators determined that
Johnson had photographed Victim 1 from about the age of 8 until the age of 15,
and Victim 2 between the ages of 14 and 16. Johnson had also photographed a
third boy, Victim 3, between the ages of 13 and 14. Additionally, investigators
concluded that Johnson had either possessed or transmitted at least twenty-four
videos of children engaging in sexually explicit conduct.
In an interview with investigators, Victim 1 stated that he met Johnson when
he was about 7 years old and that the two began engaging in sexual activity when
the victim was 8. The sexual activity continued for about six years and the
incidents were “too many to count.” Victim 1 reported that when he was about 9
years old, Johnson introduced him to two other adult men for sexual purposes.
Victim 1 said he was given drugs by one or more of the men to induce him into
having sex. Investigators determined that Johnson had taken an explicit
photograph of Victim 1 with the men.
Because Johnson’s offenses involved separate harms to three victims, the
PSI treated the offenses as separate count groups. The PSI recommended that
Johnson’s base offense level of 32 be increased to 46 because of the special
characteristics of his conduct toward the three victims. The PSI advised that
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Johnson’s offense level be decreased 3 levels to 43 for acceptance of responsibility
and assisting authorities in the investigation pursuant to United States Sentencing
Guidelines § 3E1.1(a) (Nov. 2004).
The PSI also noted that Johnson had prior convictions in state court for two
counts of engaging in a lewd act in the presence of a child. Notwithstanding that,
the PSI showed that Johnson had no criminal history points, which established a
criminal history category of I. The PSI recommended that Johnson’s criminal
history category be increased to V pursuant to U.S.S.G. § 4B1.5(a)(2) because he
was a repeat and dangerous sex offender against minors. With a total offense level
of 43 and a criminal history category of V, the PSI stated that the appropriate
guidelines range was life in prison. Pursuant to U.S.S.G. § 5G1.2(d), the PSI
recommended that Johnson receive the statutorily authorized maximum sentence
for each count and that the sentences run consecutively. That would amount to 50
years as to Count 1, 50 years as to Count 2, and 40 years as to Count 4, for a total
of 140 years.
At the August 25, 2005 sentencing proceeding, the district court decided that
the PSI had correctly calculated Johnson’s offense level and criminal history
category and that his guidelines range was life in prison. Alternatively, the court
noted that the PSI might have erred in considering as part of Johnson’s relevant
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conduct his actions toward Victim 3, who was not mentioned in the indictment.
The court noted that if the PSI had erred, Johnson’s guidelines range would be 360
months to life. If that were the case, however, the court stated that an upward
departure would be warranted pursuant to U.S.S.G. § 2G2.2 due to the seriousness
and duration of the exploitation and Victim 1’s age when the exploitation began,
among other factors.
The district court stated that Johnson “need[ed] to be incarcerated, if for no
other reason, to protect young children.” The court stated that it was “mindful and
thinking of the victims in this case, and the psychological damage that has been
inflicted on them and the turmoil that they will experience as they grow older.”
The court considered 18 U.S.C. § 3553(a), including “the need to protect the
public, to deter violations of the law, to reflect the seriousness of the offense of
conviction, and to provide appropriate punishment.” It sentenced Johnson to the
statutorily authorized maximum sentences of 50, 50, and 40 years for each of the
three counts with the terms to run consecutively for a total of 140 years.
II.
Johnson contends that we should vacate his sentence because it is excessive
and constitutes cruel and unusual punishment under the Eighth Amendment. He
characterizes his 140-year sentence as “grossly” disproportionate since he had only
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been convicted of two prior offenses, for which he successfully completed terms of
probation. He argues that he is not the type of recidivist contemplated in Ewing v.
California, 538 U.S. 11, 20, 123 S. Ct. 1179, 1185 (2003).
Johnson did not raise this issue in the district court. However, we note that
the court did not give him an opportunity to object to his sentence or the manner in
which it was imposed, which is required by United States v. Jones, 899 F.2d 1097,
1103 (11th Cir. 1990), overruled on other grounds sub nom. United States v.
Morrill, 984 F.2d 1136 (11th Cir. 1993) (en banc). Despite the court’s Jones error,
we will not remand on that basis because Johnson has not raised the Jones error on
appeal and because the record is sufficient for meaningful appellate review of his
Eighth Amendment argument. See United States v. Cruz, 946 F.2d 122, 124 n.1
(11th Cir. 1991). Typically, when a defendant fails to object to an alleged error
before the district court, we review the argument only for plain error. See United
States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005). However, because the court
did not give Johnson an opportunity to raise his Eighth Amendment objection, we
will review de novo the legality of his sentence. See United States v. Moriarty,
429 F.3d 1012, 1025 (11th Cir. 2005).
The Eighth Amendment provides that “[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.
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Const. Amend. VIII. The amendment “contains a narrow proportionality principle
that applies to noncapital sentences.” Ewing, 538 U.S. at 20, 123 S. Ct. at 1185
(internal quotation marks omitted). Outside the context of capital punishment,
there are few successful challenges to the proportionality of sentences. Raad, 406
F.3d at 1323. “This is so because we accord substantial deference to Congress, as
it possesses broad authority to determine the types and limits of punishments for
crimes.” Id. (internal quotation marks omitted).
Consequently, a court “must make a threshold determination that the
sentence imposed is grossly disproportionate to the offense committed.” Raad, 406
F.3d at 1324. The defendant has the burden of making that showing. See id. at
1324 n.4. If the sentence is grossly disproportionate, “the court must then consider
the sentences imposed on others convicted in the same jurisdiction and the
sentences imposed for commission of the same crime in other jurisdictions.” Id. at
1324. “In general, a sentence within the limits imposed by statute is neither
excessive nor cruel and unusual under the Eighth Amendment.” Moriarty, 429
F.3d at 1024 (internal quotation marks omitted).
Because a sentence within the statutory limits generally does not violate the
Eighth Amendment, we consider what those limits are for Johnson’s convictions.
Johnson was convicted of two counts of producing child pornography in violation
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of § 2251(a). Each count carries a statutory maximum punishment of fifty years
imprisonment if Johnson has a prior conviction “under the laws of any State
relating to the sexual exploitation of children.” See 18 U.S.C. § 2251(e). Johnson
was also convicted of one count of distributing child pornography in violation of §
2252A(a)(1). That count carries a statutory maximum penalty of forty years
imprisonment if Johnson had a prior conviction “under the laws of any State
relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor.” 18 U.S.C. § 2252A(b)(1).
Johnson was previously convicted in state court of two counts of performing
a lewd act in front of a minor and therefore has prior state convictions related to the
“sexual exploitation of children,” see § 2251(e), and “abusive sexual conduct
involving a minor,” see § 2252A(b)(1). That means Johnson is subject to the
statutory maximum penalty for each count for which he was convicted: 50 years as
to the first count, 50 years as to the second count, and 40 years as to the final
count.
Pursuant to U.S.S.G. § 5G1.2(d), “[i]f the sentence imposed on the count
carrying the highest statutory maximum is less than the total punishment, then the
sentence imposed on one or more of the other counts shall run consecutively, but
only to the extent necessary to produce a combined sentence equal to the total
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punishment.” We have held that § 5G1.2(d) requires that sentences run
consecutively to the extent necessary to reach the defendant’s guidelines range.
United States v. Davis, 329 F.3d 1250, 1253–54 (11th Cir. 2003) (per curiam).
Johnson does not dispute the life-in-prison guidelines range determined by the
district court. Thus, under § 5G1.2(d) and Davis, Johnson’s sentences must run
consecutively to the extent necessary to reach a sentence of life in prison. Id.;
U.S.S.G. § 5G1.2(d). The court sentenced Johnson within the limits imposed by
the relevant statutes and guidelines when it sentenced Johnson to a 140-year
sentence.
Because the district court sentenced Johnson within the statutory limits, he
has not made a threshold showing of disproportionality with respect to his
sentence. See Moriarty, 429 F.3d at 1024; see also Raad, 406 F.3d at 1324. We
need not consider the sentences imposed on others convicted in the same
jurisdiction and the sentences imposed for commission of the same crimes in other
jurisdictions. Johnson’s sentence is severe, but not more severe than the life long
psychological injury he inflicted upon his three young victims. His sentence is
neither excessive nor cruel and unusual. See Moriarty, 429 F.3d at 1024. It does
not violate the Eighth Amendment.
III.
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Alternatively, Johnson contends that we should vacate his sentence because
it is greater than necessary to serve the purposes listed in 18 U.S.C. § 3553(a) and
is therefore unreasonable. He argues that “a thirty-year sentence would have
reflected the seriousness of the offense, promoted respect for the law, provided just
punishment, . . . and protected the public.”
We review sentences imposed after United States v. Booker for
reasonableness in light of the § 3553(a) factors. United States v. Booker, 543 U.S.
220, 261, 125 S. Ct. 738, 765–66 (2005); United States v. Talley, 431 F.3d 784,
785 (11th Cir. 2005). We must determine whether the sentence imposed by the
district court “fails to achieve the purposes of sentencing as stated in section
3553(a).” Talley, 431 F.3d at 788. “[W]e recognize that there is a range of
reasonable sentences from which the district court may choose, and when the
district court imposes a sentence within the advisory Guidelines range, we
ordinarily will expect that choice to be a reasonable one.” Id. In imposing the
sentence, a district court need not mention each of the § 3553(a) factors. United
States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
At sentencing, the district court looked to § 3553(a) in determining
Johnson’s sentence. It considered § 3553(a)(2)(C) when explaining why Johnson
needed to be imprisoned to protect young children. 18 U.S.C. § 3553(a)(2)(C)
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(court shall consider the need for the sentence “to protect the public from further
crimes of the defendant”). The court also considered § 3553(a)(2)(A) when it
noted the psychological damage Johnson had inflicted on his victims and
emotional turmoil they will be faced with in the years to come. Id. § 3553(a)(2)(A)
(court shall consider the need for the sentence “to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment for the
offense”). Furthermore, the court sentenced Johnson to a term that was within his
guidelines range. It is a reasonable sentence.
AFFIRMED.
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